| People v Freeman |
| 2010 NY Slip Op 08162 [78 AD3d 1505] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Matthew Freeman,Appellant. |
—[*1] Matthew Freeman, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered January3, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (twocounts), aggravated assault upon a police officer or a peace officer, and criminal possession of aweapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts each of burglary in the first degree (Penal Law § 140.30 [1], [2]) and criminal possessionof a weapon in the second degree (§ 265.03 former [2]) and one count of aggravated assaultupon a police officer or peace officer (§ 120.11). The evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficientto establish that defendant was present at the scene of the crimes (see People v Moore, 29 AD3d 1077, 1078 [2006]), and it is also legallysufficient to establish that the weapon at issue with respect to the conviction of criminal possession of aweapon under count six of the indictment was operable (see People v Shaffer, 130 AD2d 949,950 [1987], lv denied 70 NY2d 717 [1987]). Viewing the evidence in light of the elements ofthe crimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
The majority of the contentions of defendant in his main brief with respect to alleged instances ofprosecutorial misconduct during summation are not preserved for our review (see CPL 470.05[2]) and, in any event, we conclude that "[a]ny 'improprieties were not so pervasive or egregious as todeprive defendant of a fair trial' " (People v Johnson, 303 AD2d 967, 968 [2003], lvdenied 100 NY2d 583 [2003]). We reject the further contention of defendant in his main brief thathe was denied effective assistance of counsel based on defense counsel's failure to object to theallegedly improper comments by the prosecutor (see People v Cox, 21 AD3d 1361, 1364 [2005], lv denied 6NY3d 753 [2005]). We reject defendant's contention that the sentence is unduly harsh or severe. Wenote, however, that the aggregate maximum term of the sentence exceeds the 40-year [*2]limitation set forth in Penal Law § 70.30 (1) (e) (iv), and thus thesentence should be recalculated accordingly by the Department of Correctional Services.
Even assuming, arguendo, that County Court erred in denying defendant's request to instruct thejury that the witness who supplied a weapon to defendant was an accomplice as a matter of law, thusrequiring corroboration of his testimony (cf.People v Montanez, 57 AD3d 1366, 1367 [2008], lv denied 12 NY3d 857 [2009]),we conclude that "the failure of the court to give that instruction is of no moment, inasmuch as thetestimony of the witness was in fact amply corroborated" (People v Fortino, 61 AD3d 1410, 1411 [2009], lv denied 12NY3d 925 [2009]). The contention of defendant in his pro se supplemental brief that the court erred infailing to submit to the jury the question whether that witness and another witness were accomplices asa matter of fact is not preserved for our review (see People v Balser, 185 AD2d 679 [1992],lv denied 81 NY2d 881 [1993]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contraryto the further contention of defendant in his pro se supplemental brief, the court's Sandovalruling did not constitute an abuse of discretion (see People v Walker, 66 AD3d 1331 [2009], lv denied 13NY3d 942 [2010]). Finally, the contention of defendant in his pro se supplemental brief that the courterred in failing to respond to the request by the jury for a read back of the prosecutor's summation isunpreserved for our review (see generallyPeople v Williams, 50 AD3d 472, 473 [2008], lv denied 10 NY3d 940 [2008]) and,in any event, that contention lacks merit (see People v Velasco, 77 NY2d 469, 474 [1991]).Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.